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Gold Coast Neighborhood Association v. State

Supreme Court of Hawaii

August 25, 2017

GOLD COAST NEIGHBORHOOD ASSOCIATION, Respondent/Plaintiff-Appellee,
v.
STATE OF HAWAI'I, Petitioner/Defendant-Appellant. (CIV. NO. 07-1-1122) STATE OF HAWAI'I BY ITS ATTORNEY GENERAL, Petitioner/Plaintiff-Appellant,
v.
TROPIC SEAS, INC.; THE ASSOCIATION OF APARTMENT OWNERS OF DIAMOND HEAD BEACH, INC.; OLIVIA CHEN LUM, TRUSTEE OF THE OLIVIA CHEN LUM REVOCABLE LIVING TRUST; CLARENCE KWON HOU LUM, TRUSTEE OF THE CLARENCE KWON HOU LUM TRUST AND TRUSTEE UNDER THE WILL AND ESTATE OF CHOW SIN KUM LUM; JEANNE S.J. CHAN AND HOWARD N.H. CHAN, TRUSTEES OF THE JEANNE S.J. CHAN TRUST; DIAMOND HEAD AMBASSADOR HOTEL, LTD.; DIAMOND HEAD APARTMENTS, LTD.; C S APARTMENTS, LTD.; THE ASSOCIATION OF APARTMENT OWNERS OF 2987 KALAKAUA CONDOMINIUM; TAHITIENNE, INCORPORATED; THE ASSOCIATION OF APARTMENT OWNERS OF 3003 KALAKAUA, INC.; THE ASSOCIATION OF APARTMENT OWNERS OF 3019 KALAKAUA, INC., Respondents/Defendants-Appellees. (CIV. NO. 10-1-0888)

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-14-0000472; CIV. NOS. 07-1-1122 AND 10-1-0888)

          Douglas S. Chin and William J. Wynhoff for petitioner

          Robert G. Klein, Jordon J. Kimura, Randall K. Schmitt, and Troy J.H. Andrade for respondent

          McKENNA AND POLLACK, JJ., AND CIRCUIT COURT JUDGE CASTAGNETTI, IN PLACE OF WILSON, J., RECUSED, WITH NAKAYAMA, J.

          OPINION

          POLLACK, J.

         I. INTRODUCTION

         For at least the past 65 years, residents and visitors of O'ahu have been free to walk along the cement path atop a seawall (the Seawall) on or near the seaward boundaries of property between 2943 Kalākaua Avenue and 3019 Kalākaua Avenue to access the beach, shoreline, and ocean in order to swim, surf, fish, and enjoy other activities of island living. Over the course of these many decades, the State has paid for and completed repairs and maintenance on the Seawall, enabling the public to continue to safely use the footpath. As recently as 2006, the Hawai'i State Legislature appropriated funds to repair the Seawall. However, the State shortly thereafter disclaimed any duty to maintain the Seawall, prompting commencement of this lawsuit to require the State to maintain and keep the Seawall in good and safe condition.

         The Circuit Court of the First Circuit (circuit court) ruled that based on the applicable law and the uncontested evidence in this case, the State had obtained an easement for public use over and across the Seawall by virtue of common law implied dedication. The Intermediate Court of Appeals (ICA) unanimously agreed. We conclude that in light of (1) Hawaii's long-standing principles of common law, (2) the historical significance and deep roots of implied dedication in this jurisdiction as evidenced by nearly 150 years of this court's precedent, and (3) the undisputed evidence in this case, the circuit court and the ICA correctly determined that the State obtained an easement over and across the Seawall by common law implied dedication.

         In addition to determining that the State owned an easement over and across the Seawall by implied dedication, the circuit court also ruled that the State owned the real property under the Seawall by virtue of surrender under Hawaii Revised Statutes § 264-1(c)(2) (2007). Given this court's precedent, however, ownership of the Seawall was not transferred to the State by virtue of surrender. Thus, the circuit court and the ICA erred in concluding that the State owns the Seawall and the real property under the Seawall.

         Given our disposition with respect to the merits of Gold Coast's claims in this case, we also determine whether the circuit court properly denied Gold Coast's motion for attorneys' fees and costs against the State. Although the ICA determined that an award of both fees and costs was permissible in this case, we conclude that this ruling and the circuit court's ruling were both partially erroneous because the State waived its sovereign immunity with respect to costs but not attorneys' fees.

         II. BACKGROUND

         A. Construction, Public Use, and State Repairs to the Seawall

         At issue in this case is a length of seawall that stretches from the seaward boundaries of property between 2943 Kalākaua Avenue and 3019 Kalākaua Avenue (the Seawall). The Seawall runs along Waikiki's "Gold Coast, " an area of condominiums and cooperative apartments located on ocean front lots near the Diamond Head end of Kalākaua Avenue.[1] The Seawall was originally constructed by private parties over eighty years ago. Since approximately 1930, the Seawall has been used by both residents and members of the general public, without interference or restriction, to access the ocean and to traverse along the Waikīkī coastline.

         For decades, the State has maintained the Seawall, conducted necessary repairs to the Seawall, and otherwise assumed responsibility to preserve and manage the Seawall. In at least 1982, 1984, and 1993, the State conducted various repairs to the Seawall, and local and state appropriations were made by the relevant legislative bodies in contemplation of further repairs in at least 1989, 1992, and 2006. By stipulation of the parties in this case, the repairs were described as follows:

• In June 1982, the State of Hawai'i Department of Land and Natural Resources (DLNR), Land Division, performed "emergency repair work" to "shore approximately 40 feet of the Seawall along the boundary of Diamond Head Apartments." By 1981 Haw. Sess. Laws Act 1, Item K-2, the State legislature authorized the expenditure of $25, 000.00 for these repairs.
• Sometime in 1982, the DLNR, Land Division, performed repairs and "rehabilitated broken sections of the Seawall" from the Elks Club property to near the Diamond Head end of Kalākaua Avenue. The funding for the repairs was appropriated by 1981 Haw. Sess. Laws Act 1, Item K-2, and by 1981 Haw. Sess. Laws Act 264, Item K-2.
• "Sometime after May 1984, " the State performed additional repair work on "one or more portions of the Seawalls pursuant to work identified as Job No. 1-0L-31, Waikiki Seawall Walkway Rehabilitation, Phase III." The original scope of this project consisted of "rehabilitating seawalls, constructing hand railing and other incidental and appurtenant work necessary to complete this project."[2]
• On December 8, 1992, following Hurricane Iniki, the Honolulu City Council passed a resolution authorizing the DLNR "to rehabilitate the existing Seawall walkway located in Diamond Head, Oahu and identified by TMK Nos. 3-1-032:001, 002, 003, 004, 026, 027, 028 and 029, and 3-1-033:002, 003, 004, 005, 006, 007, 008, 009, 010, 011, 053, and 056." The repair and rehabilitative work conducted pursuant to this project was limited to portions of the Seawall in front of the Diamond Head Ambassador Hotel. The construction was authorized by the Hawai'i legislature by 1989 Haw. Sess. Laws Act 316, Item K-11. Repairs were completed in September 1993 at a contract price of $609, 605.00. Pursuant to this project, "the State built or rebuilt essentially the entire wall in front of . . . three properties" along the Seawall, although "to the extent the State built the wall makai of the then shoreline the wall [was] on State property."
• In an October 13, 1993 letter from the DLNR, the Manager-Chief Engineer of the DLNR stated that further repair work on the Seawall was scheduled for TMK Nos. 3-1-32:029, 004, 003, 002, 001, 3-1-033:011 and 009.
• In 2006, the Hawai'i legislature appropriated $2 million for "plans, design and construction for the resurfacing of the seawall and installation of railings along Waikiki's Gold Coast." The appropriation was included within H.B. 1900 in a section titled "Waikiki Seawall Improvements, Oahu."

(Emphases added.)

         Since at least 1975, various assertions made by the State have further manifested its long-held position that the Seawall serves as a public right-of-way and that the State has the duty and responsibility to maintain the Seawall for use by the public. The parties stipulated that the following relevant documents would be entered into evidence in this case:

• A February 27, 1975 memorandum authored by Wallace W. Weatherwax, Deputy Attorney General (DAG Weatherwax), to the Department of Transportation's Harbors Division intended to resolve the Harbors Division's inquiry as to "whether or not the State has the responsibility to maintain and improve a public right of way which passes over a seawall located within" TMK No. 3-1-33-2 and TMK No. 3-1-33-53. In the memorandum, DAG Weatherwax stated the fact of "the use by the public of this right of way since 1930" and concluded that "the State has the responsibility to maintain the public right of way over the seawall."
• A 1982 Environmental Assessment issued by the DLNR regarding the repair of a portion of the Seawall near the Diamond Head Apartments, in which the DLNR stated that "[t]he top of the seawall serves as a public walkway for residents and beachgoers to traverse along the shores of Waikiki Beach" and that "[r]esidents, surfers, beachgoers and fishermen use the top of the seawall to traverse between the Diamond Head end of Waikiki Beach and Sans Souci Beach."
• A document dated May 1984 relating to the "Waikiki Seawall Walkway Rehabilitation" project stating that "the State has a right-of-way over the seawall and has obtained a right-of-entry onto" certain properties "for the rehabilitation of the seawall walkway."
• A "Notice of Determination (Negative Declaration)" relating to the "Waikiki Seawall Walkway Rehabilitation Project" issued by the DLNR, Water and Land Development Division, with a handwritten notation at the top identifying the document as "1992-10-23-OA-FEA-Waikiki Seawall Walkway, " describing proposed repairs to the Seawall in the amount of $550, 000.00 and stating that "the State of Hawai'i has a right-of-way over all the seawalls and walkways and is responsible to keep them in good and safe condition" and that "the walkways are used by the general public."

(Emphases added.) Thus, for many decades, the Seawall has been enjoyed by members of the general public and repaired, maintained, and overseen by the State.

         Gold Coast Neighborhood Association (Gold Coast) is "a non-profit incorporated organization doing business in the City and County of Honolulu, and is comprised of individuals and organizations that own, live in, or have an interest in real property along Kalakaua Avenue on the Waikiki coastline in the City and County of Honolulu, State of Hawai'i." Many of the members of Gold Coast represent the apartments and condominiums located along the Seawall. Following an appropriation of funds to repair the Seawall by the Hawai'i State Legislature in 2006, counsel for Gold Coast and representatives from the State discussed the need for maintenance to the Seawall. However, at a point during these discussions, the State informed Gold Coast's counsel that it now disclaimed any duty to maintain the Seawall.

         B. Circuit Court Proceedings

         On June 22, 2007, Gold Coast filed a complaint against the State seeking a declaration from the circuit court that "the State is required to maintain the Seawall and keep it in good and safe condition." In its complaint, Gold Coast identified the Seawall as bordering twenty-one properties on Kalākaua Avenue. Gold Coast also sought an order awarding it attorneys' fees and costs "as allowed by law."

         In July and August of 2007, the parties filed cross-motions for summary judgment.[3] Gold Coast contended in its summary judgment motion that the State was obligated to maintain the Seawall by virtue of its ownership of the Seawall, or, in the alternative, by virtue of an easement over the Seawall. The State rejected these arguments in its summary judgment motion and contended, inter alia, that Gold Coast had failed to join indispensable parties to the action because it had not joined all those property owners whose interests in property under or near the Seawall might be affected by the litigation.

         Prior to the circuit court's ruling on the parties' summary judgment motions, Gold Coast filed a first amended complaint (First Amended Complaint) removing ten of the twenty-one properties and adding one property. At a continued hearing on the parties' summary judgment motions on August 20, 2008, the court heard oral argument on whether the First Amended Complaint "cured the problem" alleged by the State regarding indispensable parties to the lawsuit. The State contended that the First Amended Complaint was not sufficient to cure Gold Coast's failure to join indispensable parties, arguing in part that the various homeowners' associations were not legally authorized to represent private property owners in the litigation. Gold Coast responded that each of the properties named in the First Amended Complaint was represented by associations that had agreed on behalf of their members to join Gold Coast and support the lawsuit and that the associations were entitled to represent their property owners' interests. Thus, "each individual owner's interest [was] secured and represented" by the relevant association that was authorized to act on the owner's behalf.

         At the close of the August 20, 2008 hearing, the court ruled that Gold Coast had not failed to join indispensable parties, reasoning that "given the First Amended Complaint . . . there have been amendments to ensure that the condominiums or co-ops that are contiguous to the seawalls that are identified by the TMKs in [the First Amended Complaint] are members of [Gold Coast], which is the party." The court further elaborated that it did not construe "the fact that the individual owners of the condos are not named parties" to be an "impediment to the lawsuit going forward, inasmuch as the [Associations of Apartment Owners] bind them all." The court then ruled that Gold Coast could proceed in the litigation under the theories of common law implied dedication and surrender under Hawaii Revised Statutes (HRS) § 264-1, but that both issues were subject to genuine issues of material fact precluding summary judgment.

         On April 26, 2010, the State filed its own complaint for declaratory relief with the circuit court, naming as defendants some of the individual owners and associations of the properties included in Gold Coast's First Amended Complaint. In its complaint, the State sought a declaration that "[the State] does not own the seawalls or the real property under the seawalls" and that "the State does not have an easement by prescription or implication over the seawalls." The circuit court, in accordance with the State's unopposed motion, [4]consolidated the case brought by Gold Coast with the case brought by the State.[5]

         On March 18, 2011, the parties filed a First Stipulation of Facts (Stipulated Facts) pertaining to the identities of the parties and the portions of the seawall at issue in the case. The Stipulated Facts described past repair work and construction completed on the Seawall, including the State's performance of various repairs to the Seawall in 1982, 1984, and 1993, and local and state legislative appropriations in contemplation of further repairs in 1989, 1992, and 2006, as described in greater detail above. The parties stipulated to events surrounding the State's sale to the Gold Coast in 2003 of a non-exclusive easement for "the right, privilege, and authority to construct, use, maintain and repair" a ladder accessing the ocean from a 37-square-foot portion of land along the Seawall. The parties further stipulated that TMK No. 3-1- 033:009 was subject to an "easement of right of way for pedestrians." The parties agreed that as otherwise stated by the Stipulated Facts, "the State does not hold an express easement over any of the seawalls [which are the] subject of these lawsuits."[6]

         On March 22, 2011, the circuit court[7] held a bench trial at which three witnesses for Gold Coast testified.[8] June Anderson, a resident of Diamond Head Apartments on the Gold Coast since 1971, testified that she has regularly observed members of the public walking along the Seawall, climbing over the Seawall to access the ocean, and otherwise utilizing the Seawall for recreational purposes. Ms. Anderson also testified that before becoming a resident of her Gold Coast building, she visited the Waikīkī area as early as 1952 and traversed the Seawall as a general member of the public several times.[9] According to Ms. Anderson, since 1971, she has never "seen anyone attempt to keep people from walking on the [S]eawall walkway." Ms. Anderson further testified that her building, Diamond Head Apartments, was not "insured for the [S]eawall" and that the residents have "never considered [the Seawall] [their] property really."[10] Similarly, Robert Gentry, a resident of the Gold Coast since 1982 and president of the Gold CoastNeighborhood Association, testified that from his residence, he observed a "[t]remendous amount of recreational activity" by members of the public utilizing the Seawall and the ocean beyond, including swimming, fishing, surfing, dog-walking, and lifeguarding activities. Mr. Gentry added that he has "never" tried to stop anyone from walking along the Seawall.[11] Mr. Gentry also noted that, to the best of his knowledge, his building has never had insurance over the walkway on the Seawall.

         The circuit court heard additional testimony from Guy Bishaw, a Waikīkī resident who does not own property on the Gold Coast and who does not have a relationship with the Gold Coast Neighborhood Association, who described his continuous use of the Seawall for ocean access and other recreational purposes since the 1950s. Mr. Bishaw further testified that in all the time he has used the Seawall to reach various surf spots, no one has "ever tried to stop [him] from walking on the wall" or "told [him] that the seawall was private property and [he] better not walk on the wall."

         On November 29, 2013, the circuit court issued its Findings of Fact, Conclusions of Law, and Order (Findings of Fact and Conclusions of Law). The circuit court determined that Gold Coast had prevailed on its implied dedication and surrender claims and was therefore "entitled to a declaratory ruling" that the State has an easement over and across the Seawall by implied dedication and that the State owns the Seawall and the real property under the Seawall by surrender.

         In its Findings of Fact and Conclusions of Law, the circuit court made extensive findings of fact regarding the parties, the identification and characteristics of the properties at issue, access to the Seawall from Kalākaua Avenue, the history of the State's repair work on the Seawall and communications by the State regarding its responsibility to maintain the Seawall, miscellaneous facts regarding various properties included in the lawsuit, [12] and a site visit conducted by the court and counsel for Gold Coast and the State. The court also made findings of fact regarding the public's use of the Seawall, stating in finding of fact (FOF) 103 that "[t]he public has used the Seawall for both shoreline and ocean access for decades and has done so without any apparent interference from any private landowners along the Gold Coast."

         In its conclusions of law, the circuit court addressed common law implied dedication and also evaluated surrender under the Hawaii Revised Statutes.

         Under the law of implied dedication, the circuit court stated that Gold Coast was required to demonstrate "an offer and acceptance of dedication both of which may be implied based on the circumstances." The court determined that if "regular and continuous use by the public" was the only evidence of implied dedication, "the time period must be 'much longer' than the twenty year prescriptive period under HRS § 657-31, " relying on this court's decision in In re Banning, 73 Haw. 297, 832 P.2d 724 (1992). Proof of an offer of dedication was evidenced by "the long-continued public use of the Seawall as a walkway from the 1930s to the present." Acceptance of the offer of dedication was demonstrated both by the "uncontroverted direct evidence of public use of the Seawall as a walkway from at least 1952 to when [the] suit was filed" and the State's "assertion of dominion and control over the Seawall through the State's statements that the Seawall is a public right of way and the State's actions in repairing and rehabilitating the Seawall."

         Additionally, the circuit court determined that in order to prevail under the surrender theory pursuant to HRS § 264-1(c) (2007), Gold Coast must prove, "at the very least, " the following two elements: (1) "the Seawall is a thoroughfare that was opened, laid out, or built by private parties, " and (2) "the owners have not exercised an act of ownership over the Seawall for five years or more."[13]

         With respect to the first two elements of HRS § 264-1(c), the court concluded that the Seawall exists as a walkway running along the shoreline that was originally constructed by private parties; the court further determined that Gold Coast had established that the owners had not exercised an act of ownership over the Seawall for five years or more. The court recognized the possibility of a third requirement that the State hold a preexisting easement over the relevant property arising from this court's decision in In re Banning, 73 Haw. 297, 832 P.2d 724 (1992). The court concluded that this requirement, if applicable, would also be satisfied because the State held an express easement over TMK No. 3-1-033:009 and a prescriptive easement "over all the remaining parcels" with the exception of TMK Nos. 3-1-032:029 and 30 "where the Seawall is almost wholly within property registered in land court."[14] As a result, the court determined that Gold Coast proved that the Seawall "was surrendered to the State in accordance with HRS § 264-1(c), " with the exception of those portions of the Seawall located at TMK Nos. 3-1-032:029 and 3-1-032:030, which were properties registered in land court. See HRS § 501-87 (2006) (providing that land registered in land court cannot be deemed to have been surrendered under the Hawaii Revised Statutes).

         The circuit court issued its Final Judgment concluding that the State holds an easement by implied dedication over the Seawall including those portions of the Seawall at TMK Nos. 3-1-032:029 and 3-1-032:030. The Final Judgment additionally determined that the State owns the Seawall and the real property underneath the Seawall except as to those portions at TMK No. 3-1-032:029 and TMK No. 3-1-032:030 that are on privately owned land registered in land court. The State's complaint for declaratory judgment in Civil No. 10-1-10888-04 VLC was dismissed with prejudice. The Final Judgment set forth that each party "shall bear its/his/her own attorneys' fees and costs."

         Gold Coast subsequently filed a motion for attorneys' fees and costs in the amount of $376, 539.25 (Motion for Attorneys' Fees and Costs), asserting that the State's sovereign immunity was "not implicated" because the State had filed its own complaint against Gold Coast and that Gold Coast was entitled to fees under the private attorney general doctrine. Gold Coast also suggested that even if sovereign immunity barred an award of attorneys' fees, the "interest[s] of justice" would require the court to invoke its inherent authority under the Hawaii Revised Statutes to award Gold Coast the fees it sought.

         Finally, Gold Coast contended that it was entitled to costs against the State pursuant to HRS § 607-24 (1993) because it received a final judgment against the State and was the prevailing party in the litigation. The State in its opposition argued that fees were barred by the State's sovereign immunity and that Gold Coast did not meet the requirements to merit a fee award under the private attorney general doctrine. The State alternatively contended that even if Gold Coast was entitled to fees, the requested amount must be substantially reduced. As to costs, the State argued that Gold Coast was not a prevailing party, and, in the alternative, that Gold Coast had provided "absolutely no detail as [to] any of their charges." On May 12, 2014, the circuit court entered an order denying Gold Coast's Motion for Attorneys' Fees and Costs (Order Denying Fees and Costs) because the State "ha[d] not waived its sovereign immunity as to an award of attorneys' fees and costs in the circumstances of this case."

         C. ICA Proceedings

         The State appealed the circuit court's Findings of Fact and Conclusions of Law and the Final Judgment to the ICA. The State argued that the circuit court erred on the merits by ruling that the State acquired an easement over the Seawall by common law implied dedication and/or that it owned the Seawall by virtue of surrender under HRS § 264-1(c).[15] The State contended that "state law specifically prohibits the State from acquiring ownership of real property or any interest in real property without the State's acceptance, " and because the State did not formally accept transfer of the Seawall, no implied dedication or surrender of the Seawall was effectuated. In support of its argument, the State relied on HRS §§ 171-30 (1993), 26-7 (2009) (last amended 1990), 107-10 (Supp. 2001), and 520-7 (2006).[16] The State additionally asserted that the evidence was insufficient to support a finding of common law implied dedication or statutory surrender.

         Further, the State argued that the Seawall could not be surrendered to the State because it was not a "trail" or "public highway" within the meaning of HRS § 264-1, and, thus, it was not a type of property subject to surrender under the statute. The State distinguished this case from Levy v. Kimball, 50 Haw. 497, 443 P.2d 142 (1968), in which this court held that a particular seawall constituted a "public highway" within the meaning of HRS § 261-1, because unlike in Levy, the State had not acquired a preexisting express easement over the Seawall with the exception of TMK No. 3-1-033:009.

         Gold Coast cross-appealed the circuit court's Order Denying Fees and Costs, contending that it was entitled to attorneys' fees under the private attorney general doctrine, that the State had waived its sovereign immunity because it had filed its own complaint against Gold Coast, and that the interests of justice required the court to award fees using its inherent authority.

         On June 30, 2015, the ICA issued a published opinion affirming the circuit court's conclusion that the State had acquired an easement over the Seawall by common law implied dedication and the Seawall and real property under the Seawall by surrender. Gold Coast Neighborhood Ass'n v. State, 136 Hawai'i 340, 357, 361 P.3d 1243, 1260 (App. 2015). Relying on In re Banning, 73 Haw. 297, 832 P.2d 724 (1992), the ICA held that both the owners' offer of dedication and the State's acceptance of that offer could be implied from the history of use and maintenance of the Seawall from "well before" 1969 to 2006. Gold Coast Neighborhood Ass'n, 136 Hawai'i at 354, 361 P.3d at 1257. In support of its conclusion, the ICA relied on the evidence of the "public's open and continuous non-permissive use of the Seawall as a walkway from as early as 1956"; the ICA also cited "the State's recognition of the entire Seawall as a public walkway in 1975, 1982, 1984, 1992, and 2006" and "the State's repairs to portions of the Seawall in 1982, 1984, and 1993." Id. at 355, 361 P.3d at 1258. The ICA further noted that the parties "[did] not dispute" the circuit court's finding that the "public has used the Seawall for both shoreline and ocean access for decades and has done so without any apparent interference from any private landowners along the Gold Coast." Id. at 354-55, 361 P.3d at 1257-58. The ICA therefore determined that the circuit court did not err in concluding that the State held an easement over and across the Seawall by virtue of implied dedication. Id. at 355, 361 P.3d at 1258.

         With respect to surrender, the ICA stated that a seawall that "is used as a public thoroughfare" may qualify as a "public trail" or "public highway" subject to surrender under HRS § 264-1. Id. (quoting Levy, 50 Haw. at 499-500, 443 P.2d at 144; HRS § 264-1(c) (2007)). The ICA observed that it was undisputed that the Seawall was "built by private parties and completed by 1930" and that "no owners of the Seawall exercised ownership over the Seawall for at least five years prior to litigation." Id. As a result, the ICA concluded that the circuit court did not err in determining that the real property under the Seawall was surrendered to the State with the exception of those parcels registered in land court that were not subject to the surrender statute. Id. at 355-56, 361 P.3d at 1258-59.

         The ICA also addressed the State's general argument that various provisions of the Hawaii Revised Statutes operate to preclude surrender or implied dedication of property to the State absent the State's formal consent. Id. at 356, 361 P.3d at 1259. Quoting from portions of HRS §§ 171-30 (1993), 26-7 (2009) (last amended 1990), and 107-10 (Supp. 2001), the ICA concluded that these provisions did not operate to require the State's formal consent because both doctrines of surrender and common law implied dedication "are well established means for the public to acquire State land without the State's consent via public use." Gold Coast Neighborhood Ass'n, 136 Hawai'i at 356, 361 P.3d at 1259. The ICA reasoned that the State's interpretation of HRS §§ 171-30, 26-7, and 107-10 "is not only inconsistent with the language of the statutes, but if adopted, would produce an absurd result in that it would silently abolish the doctrines of implied dedication and surrender." Id.

         Lastly, the ICA addressed Gold Coast's appeal of the circuit court's denial of attorneys' fees and costs. Id. at 356-57, 361 P.3d at 1259-60. On this issue, the ICA concluded that the circuit court had erred in barring attorneys' fees on the basis of the State's sovereign immunity because "'the doctrine of sovereign immunity is unavailing and inapposite' when the 'case deals with a suit initiated by the State.'" Id. at 357, 361 P.3d at 1260 (alteration omitted) (quoting State ex rel. Anzai v. City & Cty. of Honolulu, 99 Hawai'i 508, 515-16, 57 P.3d 433, 440-41 (2002)). The ICA also determined that the circuit court erred in denying Gold Coast costs, stating that "Gold Coast prevailed against the State" and citing HRS § 607-24 (1993). Id. Therefore, the ICA affirmed the circuit court's Findings of Fact and Conclusions of Law and Final Judgment, and it vacated the circuit court's Order Denying Fees and Costs and remanded for reconsideration of Gold Coast's Motion for Attorneys' Fees and Costs. Id.

         III. STANDARDS OF REVIEW

         "The interpretation of a statute is a question of law reviewable de novo." State v. Arceo, 84 Hawai'i 1, 10, 928 P.2d 843, 852 (1996) (quoting State v. Camara, 81 Hawai'i 324, 329, 916 P.2d 1225, 1230 (1996)). "Similarly, a trial court's conclusions of law are reviewable de novo under the right/wrong standard." State v. Kelekolio, 94 Hawai'i 354, 356, 14 P.3d 364, 366 (App. 2000) (citing State v. Lopez, 78 Hawai'i 433, 440, 896 P.2d 889, 896 (1995)).

         "The trial court's grant or denial of attorneys' fees and costs is reviewed under the abuse of discretion standard." Kamaka v. Goodsill Anderson Quinn & Stifel, 117 Hawai'i 92, 105, 176 P.3d 91, 104 (2008) (quoting Kahala Royal Corp. v. Goodsill Anderson Quinn & Stifel, 113 Hawai'i 251, 266, 151 P.3d 732, 747 (2007)).

         IV. DISCUSSION

         The State makes three principal arguments on certiorari. First, the State argues that HRS §§ 171-30, 26-7, and 107-10 operate to preclude common law implied dedication and surrender under HRS § 264-1(c) without the State's formal consent or acceptance. Second, the State contends that the circuit court was required to "make the actual owners of the real property parties to the case" and that its failure to do so constituted error. Third, the State submits that the ICA erred in determining that Gold Coast was entitled to attorneys' fees based on the ICA's reasoning that the filing of a complaint by the State for declaratory relief waived its sovereign immunity in this case.

         A. Indispensable Parties

         The State's argument on the issue of indispensable parties contends that "the actual property owners" must be joined to a lawsuit that determines ownership of the owners' properties. Gold Coast responds that it need not join the individual owners of the properties at issue because their interests are sufficiently represented by the various apartment owners' associations that are members of Gold Coast, the named plaintiff in this case.

         Gold Coast's Second Amended Complaint sought a declaration that the State is responsible for maintaining the Seawall bordering eleven identified properties that are managed by various entities. See supra notes 1, 5. Each of these entities is a member of plaintiff Gold Coast Neighborhood Association and joined Gold Coast for the purpose of having it represent the entity's and owners' interests in this litigation.

         The State acknowledged before the circuit court that the individual owners of properties located on the eleven parcels at issue in this litigation could have "their rights in this matter" "protect[ed] or represent[ed]" by "their respective condominium associations" thereby obviating any requirement to join the individual owners, but submitted that such representation was only permitted by a provision of the Hawaii Revised Statutes that was repealed in 2004 by Act 164 of the Hawai'i State Legislature. See HRS § 514A-93 (1993) ("actions may be brought by the manager or board of directors, in either case in the discretion of the board of directors on behalf of two or more of the apartment owners . . . with respect to any cause of action relating to the common elements or more than one apartment"), repealed by 2004 Hawai'i Session Laws Act 164, § 26 at 813. However, although HRS § 514A-93 (1993) was repealed by Act 164 prior to commencement of proceedings in this case, the act retained and relocated within the Hawaii Revised Statutes the authority of apartment and condominium associations to represent the interests of their owners in litigation. See 2004 Hawai'i Session Laws Act 164, § 2 at 761-62 (codified at HRS § 514B-104(a)(4) (2006)). Further, although HRS § 514A-93 (1993) was repealed in 2004, language identical to the prior version of HRS § 514A-93 was reenacted at HRS § 514A-93 in 2007 and made retroactively effective to July 1, 2006. See HRS § 514A-93 (Supp. 2007); 2007 Hawai'i Session Laws Act 244, § 2 at 745. Thus, at the time Gold Coast initiated this litigation on June 22, 2007, its members were statutorily entitled to "[i]nstitute, defend, or intervene in litigation" on behalf of their respective owners. HRS § 514B-104(a)(4) (2006); see also HRS § 514A-93 (Supp. 2007) (permitting the manager or board of directors to bring actions on behalf of owners). The circuit court therefore did not err in concluding that Gold Coast need not join the individual owners as indispensable parties.[17]

         B. Common Law Implied Dedication

         Next, the State contends that various disparate provisions of the Hawaii Revised Statutes operate to condition the implied dedication of private property to the State upon the State's formal consent or acceptance. Gold Coast responds that the statutes relied upon by the State do not require the State's formal acceptance as an additional element to the common law doctrine of implied dedication that has long existed in the State of Hawai'i.

         In 1892, Queen Lili'uokalani and the Kingdom of Hawai'i adopted the common law of England as the basis of its jurisprudence by legislation entitled "Act to Reorganize the Judiciary Department." See L. 1892, ch. 57, § 5; see also Damien P. Horigan, On the Reception of the Common Law in the Hawaiian Islands, III, 13 Haw. Bar. J. 87, 111-12 (1999). The present-day codification of this legislation can be found at HRS § 1-1, which provides in relevant part as follows:

The common law of England, as ascertained by English and American decisions, is declared to be the common law of the State of Hawaii in all cases, except as otherwise expressly provided by the Constitution or laws of the United States, or by the laws of the State, or fixed by Hawaiian judicial precedent, or established by Hawaiian usage . . . .

HRS § 1-1 (2009) (emphasis added). Thus, the common law of England applies in the State of Hawai'i except as otherwise expressly provided by Hawai'i law, federal law, or by Hawaiian judicial precedent or usage.

         The common law has historically provided for the dedication of private property for public use.[18] In re Banning, 73 Haw. 297, 304-05, 832 P.2d 724, 728-29 (1992). Common law dedication of private property is "accomplished either expressly, as by deed, or impliedly, as by acts and conduct which manifest an intent to give the property for public use." Maui Ranch Estates Owners Ass'n v. Maui Cty., 6 Haw. App. 414, 421, 724 P.2d 118, 123 (1986) (citing City of Kechi v. Decker, 230 Kan. 315, 634 P.2d 1099 (1981); 23 Am. Jur. 2d Dedication § 3 (1983)); see also Banning, 73 Haw. at 304, 832 P.2d at 728-29 ("A common law dedication may be accomplished without any statement, written or spoken, for one who invites or merely permits the public to use his or her land for a long period may be held to have made an offer of implied dedication." (quoting R.A. Cunningham, The Law of Property 751 (1984))). "A common law dedication does not operate as a grant but as an equitable estoppel, " 23 Am. Jur. 2d Dedication § 54 (2013), whereby "the owner is estopped to deny permanent public access" because the owner has "admitted the public to use the land over a long time." Banning, 73 Haw. at 304, 832 P.2d at 729 (quoting R.A. Cunningham, The Law of Property 751 (1984)); see also 23 Am. Jur. 2d Dedication § 54 (common law dedication is applied "because of lack of a grantee capable of taking").

         Under the common law, formal acceptance is not required to effectuate an implied dedication.[19] Indeed, in its explicit adoption of common law implied dedication in 1869, the Supreme Court of the Kingdom of Hawai'i in The King v. Cornwell, 3 Haw. 154, 161 (Haw. Kingdom 1869), considered that acceptance could be inferred from public use. The Cornwell court established that in Hawai'i, "[o]rdinarily, there is no other mode of showing an acceptance by the public of a dedication than by its being made use of by them, " but considered that if public use was the only evidence of dedication, it must have continued for a longer period than that required to effectuate a prescriptive easement. Id. at 161-62.

         Following Cornwell, our courts have continued to recognize common law implied dedication as a method of transferring interests in property to the State and have repeatedly noted that formal acceptance is not a prerequisite. See, e.g., Maui Ranch, 6 Haw.App. at 421, 724 P.2d at 123 (common law dedication may be accomplished "impliedly, as by acts and conduct which manifest an intent to give the property for public use"); Banning, 73 Haw. at 304-05, 832 P.2d at 728-29 ("[T]he acceptance may also be implied by the nature of the public use . . . . In other words, the duration and type of public use can raise both the presumption of the owner's intent (or offer) to dedicate land to public use, as well as constitute acceptance by the public." (citations omitted)); Wemple ex rel. Dang v. Dahman (Wemple II), 103 Hawai'i 385, 397, 83 P.3d 100, 112 (2004) (although the county had not formally accepted a statutory dedication, an additional significant question remained regarding whether "the public had an easement over [a] privately owned road because the road had been impliedly dedicated to the public"); City & Cty. of Honolulu v. Boulevard Props., Inc., 55 Haw. 305, 306, 517 P.2d 779, 781 (1973) (implied dedication of streets for use by the public may occur when land is subdivided into lots and streets, a plat showing such subdivision is recorded, and sales of the lots are made); see also David M. Forman & Susan K. Serrano, Traditional and Customary Access and Gathering Rights, in Native Hawaiian Law -A Treatise 779, 818 (Melody Kapilialoha MacKenzie et al. eds., 2015) (observing that "[a]ccess along Hawaiian trails may be protected where there has been an implied dedication of a public right-of-way across private land" and analyzing Cornwell, 3 Haw. 154). Though continuous use of the property by members of the public is commonly relied upon in determining whether a dedication occurred, conduct evincing an implied acceptance may also include actions attributable to the government, such as "maintenance of sidewalks, beach patrols, or the installation of utility connections by local government bodies." See Gulbis, supra note 19 (stating that such conduct "has been held to support an implied acceptance of an express offer to dedicate").

         Despite its deeply entrenched and long historical presence in our jurisprudence, the State contends that various provisions of the Hawaii Revised Statutes operate to preclude the implied dedication of private property to the State without the State's explicit acceptance. The State therefore suggests that the doctrine of common law implied dedication has been implicitly abolished in Hawai'i, insofar as it contends that an implied acceptance of an offer of dedication is insufficient to deem private property dedicated to the public. See Banning, 73 Haw. at 304, 832 P.2d at 728-29. However, statutes which abrogate the common law must do so expressly, not impliedly, and such statutes "must be strictly construed." Burns Int'l Sec. Servs., Inc. v. Dep't of Transp., 66 Haw. 607, 611, 671 P.2d 446, 449 (1983). Additionally, review of the statutory provisions cited by the State and the relevant caselaw refute the State's contention that Hawaii's common law doctrine of implied dedication may not transfer interests in private property to the State absent the State's formal consent.

         i. Abrogation of common law disfavored

         HRS § 1-1 provides that the only exception to the general applicability of common law principles in this jurisdiction occurs when state or federal law "expressly provide[s]" otherwise. See HRS § 1-1 (2009) (emphasis added). Our courts have repeatedly recognized the importance of the common law and have demonstrated an unwillingness to impliedly reject its principles; they have also determined that subsequent statutory enactments will not be construed as abrogating the common law "unless that result is imperatively required." Minneapolis Fire & Marine Ins. v. Matson Nav. Co., 44 Haw. 59, 67-68, 352 P.2d 335, 340 (1960) (emphasis added) (quoting Gabriel v. Margah, 37 Haw. 571, 580 (Haw. Terr. 1947)); E. Star, Inc., S.A. v. Union Bldg. Materials Corp., 6 Haw.App. 125, 141, 712 P.2d 1148, 1159 (1985) (same). This court has also held that "statutes which are in derogation of common law must be strictly construed, " and we have refused to reject common law rules absent a finding of "express [legislative] intent." Burns Int'l Sec. Servs., Inc. v. Dep't of Transp., 66 Haw. 607, 611, 671 P.2d 446, 449 (1983) (declining to abrogate common law principle of non-transferability of licenses because, in part, there was no "express intent that the legislature had forsaken the common law rule").

         This strong reluctance to abolish common law rights and remedies absent a finding of express legislative intent is not unique to Hawai'i and has, in fact, been expressed by the United States Supreme Court and the courts of numerous state and federal jurisdictions. See, e.g., United States v. Texas, 507 U.S. 529, 534 (1993) ("In order to abrogate a common-law principle, the statute must 'speak directly' to the question addressed by the common law, " in part, because the legislature has "not [written] upon a clean slate." (quoting Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 625 (1978))); Isbrandtsen Co. v. Johnson, 343 U.S. 779, 783 (1952) ("Statutes which invade the common law . . . are to be read with a presumption favoring the retention of long-established and familiar principles, except when a statutory purpose to the contrary is evident."); Globe & Rutgers Fire Ins. v. Draper, 66 F.2d 985, 991 (9th Cir. 1933) ("The courts are reluctant to construe statutes in derogation of the common law."); Gallegos v. Lyng, 891 F.2d 788, 798 (10th Cir. 1989) ("implied repeals of the common law are disfavored and should be found only where such a statutory purpose is evident"); Pac. Ins. v. Champion Steel, LLC, 323 Conn. 254, 264, 146 A.3d 975, 982 (Conn. 2016) ("It is fundamental that if the legislature wishes to abrogate the common law, it must do so expressly."); Cal. Ass'n of Health Facilities v. Dep't of Health Servs., 940 P.2d 323, 331 (Cal. 1997) ("As a general rule, 'unless expressly provided, statutes should not be interpreted to alter the common law, and should be construed to avoid conflict with common law rules.'" (alteration omitted) (quoting Goodman v. Zimmerman, 32 Cal.Rptr.2d 419, 424 (Cal.Ct.App. 1994))).

         ii. Hawaii Revised Statutes do not reflect express legislative intent to abrogate the common law

         The Hawaii Revised Statutes, and in particular, HRS §§ 264-1(c)(1), 171-30, 26-7, 107-10, and 520-7, do not "imperatively require" abrogation of common law implied dedication, nor do they evince an express legislative intent to do so. Minneapolis Fire & Marine Ins. v. Matson Nav. Co., 44 Haw. 59, 67-68, 352 P.2d 335, 340 (1960); Burns Int'l Sec. Servs., Inc. v. Dep't of Transp., 66 Haw. 607, 611, 671 P.2d 446, 449 (1983).

         a. HRS § 264-1(c)(1)

         Although not expressly relied upon by the State, the dissent contends that HRS § 264-1(c)(1) abrogates common law dedication with respect to ways and trails. Dissent at 20. We therefore begin our analysis by considering the analogous concepts of statutory dedication as set forth in the Hawaii Revised Statutes and common law implied dedication and the treatment of the two doctrines by courts of this jurisdiction.

         HRS § 264-1(c)(1) sets forth the requirements to effectuate a statutory dedication of certain private lands for public use in the State of Hawai'i. At the commencement of this litigation, HRS § 264-1(c)(1) provided in relevant part:

(c) All roads, alleys, streets, ways, lanes, trails, bikeways, and bridges in the State, opened, laid out, or built by private parties and dedicated or surrendered to the public use, are declared to be public highways or public trails as follows:
(1) Dedication of public highways or trails shall be by deed of conveyance naming the State as grantee in the case of a state highway or trail and naming the county as grantee in the case of a county highway or trail. The deed of conveyance shall be delivered to and accepted by the director of transportation in the case of a state highway or the board of land and natural resources in the case of a state trail. In the case of a county highway or county trail, the deed shall be delivered to and accepted by the legislative body of a county.

HRS § 264-1(c)(1) (2007). HRS § 264-1(c)(1) constitutes a method of executing a dedication by statute ("statutory dedication") because it delineates procedures to effect "a dedication of land to public use . . . pursuant to statute." 23 Am. Jur. 2d Dedication § 3 (2013); see also Maui Ranch Estates Owners Ass'n v. Maui Cty., 6 Haw. App. 414, 421, 724 P.2d 118, 123 (1986) ("Dedication of land for public use may be achieved either by statute or by common law. Statutory dedication occurs when the statutory provisions are complied with.").

         Although the Hawaii Revised Statutes provide for a method of statutory dedication, HRS § 264-1(c)(1) does not provide an exclusive method of dedicating private property for public use in the State of Hawai'i. Rather, HRS § 264-1(c)(1) exists alongside common law implied dedication, which our courts have long recognized. See, e.g., The King v. Cornwell, 3 Haw. 154, 155, 161-62 (Haw. Kingdom 1869); Maui Ranch, 6 Haw.App. at 421, 724 P.2d at 123; In re Banning, 73 Haw. 297, 304-05, 832 P.2d 724, 728-29 (1992); Wemple II, 103 Hawai'i 385, 397, 83 P.3d 100, 112 (2004); Wemple ex rel. Dang v. Dahman (Wemple I), 102 Hawai'i 27, 72 P.3d 499 (App. 2002), rev'd, 103 Hawai'i 385, 83 P.3d 100 (2004). Indeed, decisions of this jurisdiction analyzing HRS § 264-1(c) have also simultaneously reaffirmed the viability of common law implied dedication as a way of transferring property interests to the State in addition to the method of statutory dedication codified in the Hawaii Revised Statutes. See Wemple II, 103 Hawai'i at 392-93, 397, 83 P.3d at 107-08, 112 (concluding that although the road was not dedicated to the county by virtue of HRS § 264-1 (Supp. 1990), it remained a "significant" question whether the public held an easement over the road by operation of common law implied dedication); Banning, 73 Haw. at 304-05, 313, 832 P.2d at 728-29, 732 (detailing doctrine and requirements of common law dedication and then separately analyzing HRS § 264-1 (1985)); Maui Ranch, 6 Haw.App. at 421-22, 724 P.2d at 123-24 (same). The coexistence of common law dedication and statutory dedication in our state exemplifies the principle that "[e]ven in the same jurisdiction, a dedication of land to public use may be made either according to the common law or pursuant to statute." 23 Am. Jur. 2d Dedication § 3 (2013).

         For example, in Wemple II, this court was called upon to review a grant of summary judgment determining that a private roadway had been dedicated to a county for public use. 103 Hawai'i at 392-93, 83 P.3d at 107-08. The court noted that the ICA in its published opinion in the case[20] had already "thoroughly analyzed the complex history of the public road system in Hawai'i" and had correctly concluded that HRS § 264-1 "prevents a private road from becoming a 'county highway' . . . without express acceptance of the private road by the County Council, " which had not occurred. Id.

         Significantly, the Wemple II court in its unanimous opinion explicitly recognized the continued viability of common law implied dedication in Hawai'i. In addition to determining that the private roadway had not been dedicated to the county by virtue of HRS § 264-1, this court also analyzed the ICA's "conclu[sion] as a matter of law" that "the public had an easement over the privately owned road because [the] road had been impliedly dedicated to the public." Id. at 397, 83 P.3d at 112. We concluded that the ICA had erred in resolving the issue of implied dedication as a matter of law. Id. As stated by the Wemple II court, "Whether an implied easement exists depends on the parties' intent and is therefore a question of fact." Id. Based on the record, we concluded that there remained questions of fact regarding the parties' intents, thus making summary judgment inappropriate. Id. As a result, this court reversed the ICA's decision, vacated the trial court's grant of summary judgment, and remanded to the trial court for further proceedings. Id. at 398, 83 P.3d at 113.[21]

         Wemple I and Wemple II reflect our historical application of common law implied dedication as an alternative means of transferring interests to the State separate and apart from HRS § 264-1(c)(1). Indeed, Wemple II manifested its approval of the ICA's following summary in Wemple I on the viability of common law implied dedication and its interplay with statutory dedication:

To summarize, HRS § 264-1 requires that before a county can be held responsible and liable for the maintenance or repair of a private road that has been dedicated, surrendered, or abandoned to public use, there must have been "unequivocal acceptance" of the private road by the legislative body of the county. Maui Ranch Estates Owners Ass'n v. County of Maui, 6 Haw.App. at 421, 724 P.2d at 123. That is, all the requirements for statutory dedication, abandonment, or surrender must be completed. However, a privately owned road that has not been statutorily dedicated, surrendered, or abandoned to public use by technical compliance with HRS § 264-1 may still be impliedly dedicated, surrendered, or abandoned to public use for a general roadway easement.

Wemple I, 102 Hawai'i at 53, 72 P.3d at 525 (emphasis added).[22]

         Therefore, for the reasons stated, and because this court has firmly recognized that the two doctrines exist in harmony, see Wemple II, 103 Hawai'i at 397, 83 P.3d at 112, [23] HRS § 264-1(c)(1) evinces no intent to abrogate the concept of common law dedication, much less does it "imperatively require[]" such result. Burns Int'l Sec. Servs., Inc., 66 Haw. at 611, 671 P.2d at 449; Minneapolis Fire & Marine Ins., 44 Haw. at 67-68, 352 P.2d at 340.

         b. HRS §§ 171-30, 26-7, 107-10

         In support of its contention that the common law doctrine of implied dedication may not transfer interests in private property to the public without the State's explicit acceptance, the State primarily relies on HRS §§ 171-30 (1993), 26-7 (2009) (last amended 1990), and 107-10 (Supp. 2001). However, a clear intent to abrogate common law implied dedication in this jurisdiction is absent in these provisions.

         HRS § 171-30 grants authority to the Board of Land and Natural Resources (BLNR) to acquire interests in "all real property" and provides in relevant part as follows:

(a) The board of land and natural resources shall have the exclusive responsibility, except as provided herein, of acquiring, including by way of dedications:
(1) All real property or any interest therein and the improvements thereon, if any, required by the State for public purposes . . . .

HRS § 171-30(a)(1) (1993). BLNR thus has the exclusive responsibility of "acquiring" real property that the State needs for public purposes, including by dedication. HRS § 171-30(a)(1). Although BLNR is assigned responsibility to affirmatively acquire property by way of purchase or statutory dedication, the statute does not address obtaining the State's formal approval or acceptance of dedicated property in all cases, particularly when it is merely a passive recipient.[24]Indeed, this statute has been in effect for more than 50 years and no case in this jurisdiction has considered it relevant within the context of common law implied dedication, much less has it been interpreted to abrogate or modify the doctrine of implied dedication. See, e.g., Banning, 73 Haw. at 304-09, 832 P.2d at 728-31; Wemple II, 103 Hawai'i at 397, 83 P.3d at 112; Maui Ranch, 6 Haw.App. at 420-22, 724 P.2d at 123-24. In light of these considerations, HRS § 171-30 neither manifests an express intent to abrogate common law implied dedication nor imperatively requires such result. See Burns Int'l Sec. Servs., Inc., 66 Haw. at 611, 671 P.2d at 449; Minneapolis Fire & Marine Ins., 44 Haw. at 67-68, 352 P.2d at 340.

         HRS §§ 26-7 and 107-10 likewise do not evince a clear intent to abrogate or modify common law implied dedication. HRS § 26-7 establishes the composition and authority of the Department of the Attorney General. The provision delineates the various powers and duties of that office and provides that the Attorney General "shall . . . approve as to legality and form all documents relating to the acquisition of any land or interest in lands by the State." HRS § 26-7 (2009) (last amended 1990) (emphasis added). HRS § 107-10 similarly requires that no real property interest "shall be acquired" by the State "by agreement, gift, devise, eminent domain, or otherwise . . . without the prior approval of the attorney general as to form, exceptions, and reservations." HRS § 107-10 (Supp. 2001) (emphasis added). These provisions do not relate or speak to conveyance of property interests by way of implied dedication. Rather, HRS §§ 26-7 and 107-10 merely give the Attorney General final authority to review and approve the documents relating to acquisitions of land interests and to inspect such acquisitions as to form, exceptions, and reservations. See HRS §§ 26-7, 107-10; see also Island-Gentry Joint Venture v. State, 57 Haw. 259, 265, 554 P.2d 761, 766 (1976) (noting that under HRS § 26-7, "the Attorney General has the further exclusive authority to approve as to the legality and form of all documents relating to the acquisition of any land or interest in land by the State"). These provisions express no intent to abrogate common law implied dedication, nor have they ever been mentioned by our courts as having any relevance to the doctrine. See Burns Int'l Sec. Servs., Inc., 66 Haw. at 611, 671 P.2d at 449.

         c. HRS chapter 520

         The State also argued before the circuit court that HRS chapter 520 operated to preclude the implied dedication of the Seawall for public use in this case. However, HRS chapter 520, titled "Landowners' Liability, " does not demonstrate an express intent to abrogate implied dedication as a method of transferring interests in private property to the State. Rather, "[t]he purpose of this chapter is to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting their liability toward persons entering thereon for such purposes." HRS § 520-1 (2006). To accomplish this purpose, HRS chapter 520 shields from liability private property owners who allow the public to use their land for recreational purposes. See HRS § 520-4 (2006).

         Additionally, to further protect private property owners, HRS § 520-7 provides that "[n]o person shall gain any rights to any land by prescription or otherwise, as a result of any usage thereof for recreational purposes as provided in this chapter." HRS § 520-7 (2006) (emphasis added). HRS chapter 520 thus also concerns itself with the property rights of private landowners as they relate to the recreational user, seeking to balance public recreational use and private property rights in order to incentivize permissive public use of private land. HRS chapter 520 does not, however, speak to the rights or responsibilities of the State in relation to the private property owner.

         Since its enactment in 1969, HRS chapter 520 has never been interpreted to suggest an abrogation of common law implied dedication. To the contrary, this court has expressly considered the effect of HRS chapter 520 on implied dedication and has found the two to be reconcilable. See Banning, 73 Haw. at 305-08, 832 P.2d at 729-30. In Banning, this court considered whether continuous public use of private property raises a conclusive presumption that the landowner intended to offer the property for dedication. Id. The Banning court noted that the general intent of HRS chapter 520 to encourage landowners to permit public use of private lands could be undermined by such a conclusive presumption. Id. at 307-08, 832 P.2d at 730. In keeping with this intent, the court determined that continuous public use raises only a rebuttable presumption of implied dedication, thus concluding that the common law doctrine of implied dedication and HRS chapter 520 exist in harmony. Id. at 308, 832 P.2d at 730. Therefore, HRS chapter 520 has already been determined by this court to not evince an express intent to abolish common law implied dedication or to imperatively require that result. See Burns Int'l Sec. Servs., Inc., 66 Haw. at 611, 671 P.2d at 449; Minneapolis Fire & Marine Ins., 44 Haw. at 67-68, 352 P.2d at 340.

         d. Implicit abolishment of common law implied dedication is improper

         The State contends that the foregoing statutes require both the Attorney General and the BLNR to formally consent to all transfers of real property interests to the State. The State thus asserts that implied acceptance is insufficient to effectuate an implied dedication of property to the State. This conclusion, which abrogates the common law doctrine of implied dedication as a means of transferring interests in private property to the public, is not supported by the authority cited by the State. First, the common law doctrine of implied dedication has been repeatedly recognized in this jurisdiction for over 150 years, and this court itself has reaffirmed its viability as recently as 2004. See Cornwell, 3 Haw. at 161-62 (recognizing common law implied dedication and observing that "[o]rdinarily, there is no other mode of showing an acceptance by the public of a dedication than by its being made use of by them"); Maui Ranch, 6 Haw.App. at 421, 724 P.2d at 123 (common law dedication may be accomplished "impliedly, as by acts and conduct which manifest an intent to give the property for public use"); Banning, 73 Haw. at 304-05, 832 P.2d at 728-29 ("[T]he acceptance may also be implied by the nature of the public use . . . . In other words, the duration and type of public use can raise both the presumption of the owner's intent (or offer) to dedicate land to public use, as well as constitute acceptance by the public." (citations omitted)); Wemple II, 103 Hawai'i at 397, 83 P.3d at 112 (although the county had not formally accepted a statutory dedication, an additional significant question remained regarding whether "the public had an easement over [a] privately owned road because the road had been impliedly dedicated to the public");[25] City & Cty. of Honolulu v. Boulevard Props., Inc., 55 Haw. 305, 306, 517 P.2d 779, 781 (1973) (implied dedication of streets for use by the public may occur when land is subdivided into lots and streets, a plat showing such subdivision is recorded, and sales of the lots are made).[26]Abrogation of such a deeply-rooted principle of law is contradictory to our jurisdiction's requirement that the common law governs unless "otherwise expressly provided."[27] HRS § 1-1 (2009) (emphasis added); Minneapolis Fire & Marine Ins., 44 Haw. at 67-68, 352 P.2d at 340 (subsequent statutory enactments will not be construed as abrogating the common law "unless that result is imperatively required"). Indeed, the fact that HRS § 1-1 requires adherence to the common law unless "otherwise expressly provided" suggests that impliedly abolishing the common law is itself inconsistent with HRS § 1-1.

         Further, that the State is required to rely on a combination of disparate provisions of the Hawaii Revised Statutes exposes an important point: none of the provisions relied upon provide for the abrogation of Hawaii's common law doctrine of implied dedication or evince express legislative intent to do so. Even combined, the statutes cited by the State do not support an implicit abolishment of common law implied dedication. Decisions of this court that have considered two of the provisions relevant to this case repudiate any argument that they operate to impliedly abrogate the doctrine. See Wemple II, 103 Hawai'i at 397, 83 P.3d at 112 (considering as a "significant" question whether an easement was created over a roadway by virtue of implied dedication even after finding a lack of compliance with HRS § 264-1 (Supp. 1990)); Banning, 73 Haw. at 307-08, 832 P.2d at 730 (concluding that in light of legislative intent behind HRS chapter 520, public use constituted a rebuttable presumption of implied dedication). The remaining provisions relied on by the State have been codified in the Hawaii Revised Statutes for decades, and no case has ever cited to them as relevant to or inconsistent with the doctrine.

         Permitting the implied repeal of a common law doctrine that has been recognized by this court as recently as 2004[28]would permit the implied abrogation of the common law in other areas of our jurisprudence, in direct contradiction to the mandate of HRS § 1-1 that the common law governs unless "otherwise expressly provided." HRS § 1-1. As stated by this court, "statutes which are in derogation of common law must be strictly construed." Burns Int'l Sec. Servs., Inc., 66 Haw. at 611, 671 P.2d at 449 (emphasis added); see also Akai v. Lewis, 37 Haw. 374, 378 (Haw. Terr. 1946) ("It is also well settled that under the rule of strict construction it is not to be presumed that the lawmakers intended to abrogate or modify a rule any further than that which is expressly declared or clearly indicated."); Pac. Ins. v. Champion Steel, LLC, 323 Conn. 254, 264 (Conn. 2016) ("It is fundamental that if the legislature wishes to abrogate the common law, it must do so expressly.").

         Additionally, in Banning, this court stated that "public policy 'favors extending to public use and ownership as much of Hawaii's shoreline as is reasonably possible.'" Banning, 73 Haw. at 309-10, 832 P.2d at 731 (quoting Cty. of Haw. v. Sotomura, 55 Haw. 176, 182, 517 P.2d 57, 61-62 (1973)). The Banning court specified that this public policy interest "must be balanced against the littoral landowner's right to the enjoyment of his land." Id. at 310, 832 P.2d at 731. As concluded by the circuit court, "the Seawall is critical to public access to the shoreline along the Gold Coast." It is further noted that in this case, Gold Coast's littoral landowners acknowledge the State's easement interest over and across the Seawall.

         Impliedly abrogating the doctrine of implied dedication would also in cases such as this conflict with our court's strong historical commitment to preserving public access to the ocean by vesting rights in waterways and beaches in the State when reasonably possible. See, e.g., In re Ashford,50 Haw. 314, 440 P.2d 76 (1968) (holding that the boundary of the State's ownership of public beaches extended to upper reaches of wash of waves, rather than the mean high tide line); Sotomura, 55 Haw. at 181-82, 517 P.2d at 61-62 (describing Ashford as a judicial recognition that the "long-standing public use of Hawaii's beaches . . . has ripened into a customary right" and noting that public policy "favors extending to public use and ownership as much of Hawaii's shoreline as is reasonably possible"); State v. Zimring,58 Haw. 106, 121, 566 P.2d 725, 735 (1977) (new ocean shoreline formed by volcanic eruption belonged to the public rather than private property owners, because "sound public policy demand[s] that such land inure to the benefit of all the people of Hawaii"); Diamond v. State, 112 Hawai'i 161, 175-76, 145 P.3d 704, 718-19 (2006) ...


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